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Challenging a UKBA Civil Penalty

As the Home Office continues to ramp up its activity against illegal working in line with the current political agenda, we’re seeing an increase in the number of UKBA civil penalty notices being served on employers for illegal employment.

The civil penalty regime exists to ensure employers of migrant workers are compliant with immigration rules and that all their personnel have the relevant permissions to work in the UK.

The adverse impact of a UKBA civil penalty

It’s in every organisation’s best interests to avoid being found liable and ‘named and shamed’ for employing illegal workers.

The civil penalty regime applies equally to all employers of migrant workers, catching out both employers who choose to ignore their obligations as well as more diligent employers who ‘unknowingly’ hire illegal personnel, for example because of a flaw in their onboarding processes.

Either way, if you are found liable for a civil penalty, you face a fine of up to £20,000 per illegal worker. Which means if the civil penalty notice relates to several workers, the sums involved can quickly mount and become detrimental to your organisation’s operations.

If the Home Office establishes that you ‘knowingly’ hired illegal workers or workers subject to immigration controls, you could face criminal prosecution as well as an unlimited fine.

You are also likely to be downgraded on the register of sponsors, or have your licence revoked altogether. This becomes business-critical when your organisation can no longer bring non-European personnel to the UK.

Given the potential financial, operational and reputational impact of a civil penalty notice, employers that are found liable of a breach of their immigration obligations should give serious consideration to their options for appealing the civil penalty.

Challenging a UKBA civil penalty: Appeal

If you are issued with a UKBA civil penalty notice for illegal working, you have 28 days to pay the fine or to appeal to the Home Office. So it’s important to act quickly, decisively and effectively.

With the stakes so high, having a strategy in place will help you follow the civil penalty appeals process correctly and put the strongest case forward for your organisation. You should also be prepared for a Home Office visit as part of the appeal.

Stage 1:

Your first recourse is to write to the Secretary of State to lodge your objection(s). This must be within 28 days of the penalty being issued.

There are three types of objection:

You are not liable to pay the penalty, for example because you are not the employer of the workers in question.

You have a statutory excuse under Section 15 of the Immigration, Asylum and Nationality Act 2006. This applies if you can prove that you carried out relevant document checks of the relevant workers’ documentation before they commenced employment, that you took reasonable steps to ensure the validity of documents and as such that you were unaware of their illegal status. You would therefore not be in breach and not liable to pay the penalty.

The level of the penalty is too high, for example, if you meet specified mitigating criteria such as being cooperative with the Home Office investigation or having some reasonable measures in place for compliance.

It’s important to note that UKBA can increase the level of your original penalty following an appeal, so you need to be confident there are no grounds to justify an increase in the level of penalty.

The approach you take to challenging your civil penalty notice will depend on your specific circumstances and the nature and level of the civil penalty notice itself. Seeking professional advice can help provide you with a defence strategy to ensure you take the most effective approach to your appeal and minimise the potential for an uplift in the fine.

Stage 2:

If your written appeal is rejected, the next stage is to make a further objection to the County Court. You have to do this within 28 days of the Home Office’s final decision.

This will lead to a rehearing, where the court can look at any documentation it considers relevant, including documents not considered by UKBA.

Thorough preparation for this hearing is critical. You need to build a strong case based on facts and robust evidence. In our experience, UKBA will prefer to settle in advance of a hearing where there is evidence of non-liability of employers, so good preparation can increase the likelihood of settling before the full hearing takes place.

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